130th Ohio General Assembly
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As Introduced

124th General Assembly
Regular Session
2001-2002
S. B. No. 8


SENATOR Amstutz



A BILL
To enact section 2913.042 of the Revised Code to regulate the transmission of electronic mail advertisements.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That section 2913.042 of the Revised Code be enacted to read as follows:

Sec. 2913.042.  (A) As used in this section:

(1) "Advertisement" has the same meaning as in section 4931.55 of the Revised Code.

(2) "Computer," "computer network," "computer program," and "computer software" have the same meanings as in section 2913.01 of the Revised Code.

(3) "Electronic mail" means an electronic message that is transmitted between two or more computers or electronic terminals, whether or not the message is converted to hard copy format after receipt, and whether or not the message is viewed upon the transmission or stored for later retrieval. "Electronic mail" includes electronic messages that are transmitted through a local, regional, or global computer network.

(4) "Electronic mail advertisement" means an electronic message containing an advertisement that is sent via the internet, the principal purpose of which is the advertising, promoting, or marketing of any good, service, or enterprise to the recipients.

(5) "Electronic mail service provider" means any person that is an intermediary in sending and receiving electronic mail and provides to users of electronic mail services the ability to send or receive electronic mail.

(6) "Internet" means a hierarchy of computer networks and systems that includes, but is not limited to, commercial networks (.com or .co), government networks (.gov), military networks (.mil), university networks (.ac or .edu), and other research networks (.org or .net) and spans many different physical networks and systems around the world.

(7) "Originating address" means the string of characters used to specify the source of any electronic mail message.

(8) "Receiving address" means the string of characters used to specify the recipient of any electronic mail message.

(9) "Recipient" means a person who receives an item of electronic mail or an electronic mail advertisement.

(B) No person shall use a computer, a computer network, or the computer services of an electronic mail service provider to transmit an electronic mail advertisement in contravention of the authority granted by, or in violation of the policies set by, the electronic mail service provider. This division shall not apply to any of the following:

(1) A person, including an interactive computer service, that provides users with access to a computer network and, as a condition of providing the access, requires users to receive unsolicited advertisements;

(2) Electronic mail advertisements that are accessed by the recipient from an electronic bulletin board;

(3) The transmission of an electronic mail advertisement from an organization or similar entity to a member of the organization or similar entity.

(C)(1) Except as otherwise provided in divisions (B) and (I) of this section, a person that transmits or causes to be transmitted to a recipient an electronic mail advertisement shall clearly and conspicuously provide both of the following to the recipient at the same time as the transmission of the electronic mail advertisement:

(a) The individual or business name, complete residence or business address, and electronic mail address of the person transmitting the electronic mail advertisement;

(b) A notice that the recipient may decline to receive from the person transmitting the electronic mail advertisement any additional electronic mail advertisements and a detailed procedure for declining to receive any electronic mail advertisements.

(2) If the recipient of an electronic mail advertisement uses the procedure contained in the notice described in division (C)(1)(b) of this section to decline to receive the type of electronic mail advertisement that is contained in the notice, the person that transmitted the original electronic mail advertisement shall not transmit to the recipient any additional electronic mail advertisements.

(D) No person shall use a computer, a computer program, a computer network, or the computer services of an electronic mail service provider with the intent to forge the originating address or other routing information in any manner in connection with the transmission of an electronic mail advertisement through or into the network of an electronic mail service provider or its subscribers.

(E) No person shall knowingly give, sell, or otherwise distribute or possess with the intent to sell, give, or distribute a computer program or computer software that facilitates or enables the forgery of the originating address or other routing information for the purpose of sending an electronic mail advertisement through or into the facilities of an electronic mail service provider or its subscribers.

(F) No internet service provider shall be liable for transmitting another person's electronic mail advertisement through its network nor for any action voluntarily taken in good faith to block the receipt or transmission through its service of any electronic mail advertisement that it believes is, or will be sent, in violation of its policies. An internet service provider may disconnect or terminate the service of any person that is in violation of the internet service provider's policies.

(G) If a person violates division (B) or (C) of this section, the recipient of the electronic mail advertisement transmitted in violation of either of those divisions may bring a civil action against that person to enforce that division. The recipient who brings a civil action under this division may recover both of the following:

(1) Actual damages or damages of ten dollars per electronic mail advertisement received in violation of division (B) or (C) of this section, whichever is greater;

(2) Attorney's fees, court costs, and other costs of bringing the action.

(H) In addition to any other recovery that is allowed pursuant to division (G) of this section, the recipient of an electronic mail advertisement transmitted in violation of this section may apply to the court of common pleas in the county in which the recipient resides for an order enjoining the person who transmitted that electronic mail advertisement from transmitting to the recipient any other electronic mail advertisement.

(I) A person is not liable to a recipient for civil damages under this section if the person transmits or causes to be transmitted to the recipient an electronic mail advertisement if one of the following applies:

(1) The person has a preexisting business or personal relationship with the recipient.

(2) The recipient has expressly consented to receive the item of electronic mail from the person.

(J) Whoever violates division (D) of this section is guilty of using a computer program or computer software to forge an originating address, a felony of the fifth degree.

(K) Whoever violates division (E) of this section is guilty of distributing a computer program or computer software used to forge an originating address, a misdemeanor of the fourth degree.

(L) Each use or distribution of a computer program or computer software in violation of division (D) or (E) of this section is a separate offense.

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